Monday, April 22, 2013

In praise of torture

Several years ago I wrote that “recently we
witnessed Chechen rebels taking over a Moscow theater, capturing hundreds of
hostages, and threatening to kill them if the intruders’ demands were not met.
Let’s assume the same thing happens in the United States, but with al-Qaeda
terrorists. Assume further that we capture one of the terrorists who knows the
plans of his comrades, but he won’t talk. Should we use torture to force this
crucial information out of him?”

Well,
Boston has just experienced an analogous situation. Brother 1 (the elder) and
Brother 2 (the younger) detonate two IEDs (improvised explosive devices) at the
Boston Marathon killing at least three innocent bystanders and maiming scores
of others. Brother 1 is killed in a shootout with police. Brother 2 survives.
Not initially having been “Mirandized” (“You have the right to remain silent,”
etc.) he is to be politely questioned by crack FBI interrogators who cannot lay
a finger on him (are you listening Senators McCain and Graham, and your weak-kneed cohort?).

Let’s
say, hypothetically, that Brother 2 tells them that there are other bombs
stashed in Boston, ticking away, and set to explode in public places beginning Thursday
morning. Perhaps Fenway Park, maybe in a subway, at a race track or Prudential
Center Mall. Why not all of them? Or elsewhere. Anywhere.

But there’s
a problem. Brother 2 won’t provide any details. He just lies in his hospital
bed muttering the mantra of “tick tock, tick tock.”

Frustrated—and
plenty scared, after all Brother 2 has proved his bombing creds once already,
to devastating effect—the interrogators would like to torture the information
out of the terrorist.

"Torture"—commonly
defined as "the inflicting of severe pain to force information or
confession"—comes principally in two varieties: physical (e.g., the
"third degree") and psychological (e.g., sleep deprivation). The
literature on torture is voluminous, most commentators concluding that torture
is odious and unacceptable at all times and under all circumstances, especially
in a democracy.

But is it?
Should it be?

Some of
the commentators, in their analysis and discussion of the phenomenon of
torture, admit being deeply troubled by how a democracy deals with the question
of torture generally, let alone in the extreme example of the so-called
"ticking time bomb" situation such as the one I posit here.

Until
recently the question was hypothetical. Sadly, in the United States of America it
no longer is.

There are
variations on the ticking time bomb situation, but the essence is in this
plausible, even worse, scenario: A known terrorist in FBI custody, whose
information is credible, won’t disclose where in Washington, DC, he has
secreted a "weapon of mass destruction" – a nuclear bomb – set to
detonate in twenty-four hours. The Bureau is certain that the terrorist will
never voluntarily reveal the bomb’s location. Within a day our nation’s capital
could be wiped from the face of the earth, our government decimated,
surrounding areas irredeemably contaminated, and the United States laid
defenseless to unimaginable predation by our enemies.

What to
do?

Accepting
these facts for the sake of argument, we have only two choices. Do nothing, and
suffer the unimaginable consequences, or torture the information out of the
terrorist.There are
those among us—nihilists come to mind–who would probably stand by idly and
endure an atomic holocaust. But most people, realists, would doubtless opt for
torture, albeit reluctantly.

They
would be correct. They would be entitled to be free of even a scintilla of
moral guilt, because torture – of whatever kind, and no matter how brutal – in
defense of legitimate self-preservation is not only not immoral, it is a
moral imperative.

Unknown
to most Americans, one case in two different courts in the United States—a
state appellate court in Florida, and a federal Court of Appeals—have, albeit
implicitly, endorsed such a use of physical force, and thus of torture, if
necessary to save lives.

Jean Leon
kidnapped one Louis Gachelin, who was held at gunpoint by Leon’s accomplice. A
ransom was arranged, a trap was sprung, and Leon was arrested.

Fearing
that the accomplice would kill Gachelin if Leon didn’t return promptly with the
ransom money, the police demanded to know where the victim was being held. Leon
wouldn’t talk.

According
to the Third District Court of Appeal of the State of Florida, when Leon
"refused, he was set upon by several of the officers. They threatened and
physically abused him by twisting his arm behind his back and choking him [and,
allegedly, threatened to kill him] until he revealed where . . . [Gachelin] was
being held. The officers went to the designated apartment, rescued . . .
[Gachelin] and arrested . . . [the accomplice]."

While
this was happening, Leon was taken "downtown," questioned by a
different team of detectives, and informed of his Miranda rights. He signed a
waiver and confessed to the kidnapping. But before Leon’s trial, he sought to
exclude his police station confession, arguing that it was the tainted product
of the cops’ literal arm twisting, choking, and threats. (No self-incrimination
issue arose from Leon having revealed the victim’s location because that
information was not sought to be used against him at his trial).

The trial
judge denied Leon’s motion to suppress his confession on the ground that the
force and threats used on him at the time of arrest were not the reason for his
confession. In other words, the conceded coercion at the time of Leon’s arrest
had dissipated by the time of his confession, which the trial judge ruled had
been given voluntarily.

Leon
appealed. The Florida appeals court affirmed, reaching the same conclusion as
the trial judge: Whatever had happened at Leon’s arrest, the coercion had
dissipated by the time he’d confessed. Thus, it was proper to use Leon’s
confession against him at trial.

That
ruling should have been the end of Leon’s first appeal because the only
question in the case was the admissibility of Leon’s confession. Yet the appeal
court’s opinion went further than the facts of the case required. In language
lawyers call dicta—judicial reflections in no way necessary for a decision—the
appellate judge added, gratuitously, that "the force and threats
asserted upon Leon in the parking lot were understandably motivated by the
immediate necessity to find the victim and save his life."

Consider
the implications. Even though the motive for using force, and the police’s use
of it, were irrelevant to the decision, the appellate court’s 2-1 majority saw
fit to give its express approval of physical and psychological coercion in this
situation, so long as the product of that coercion (the confession) was not
used against defendant Leon at his trial.Lest
anyone think that the dicta in this decision was an aberration, we need look
only at the unanimous three-judge decision in Leon’s further appeal to the
United States Court of Appeals for the Eleventh Circuit.

The facts
were not in dispute. Once again, the only issue on appeal was whether the
physical and psychological coercion at the time of arrest tainted the
confession, or whether the coercion had, by then, sufficiently dissipated to
make Leon’s confession voluntary.

First,
the federal appeals court dealt with self-incrimination. As to Leon’s arrest
statement concerning where his accomplice was holding Gachelin, there was no
issue since the prosecution, properly, had never tried to introduce that
statement at the trial. Next, whatever coercion had been used, it did not taint
Leon’s later confession because, according to the court, "the totality of
the circumstances . . . clearly confirms . . . that the second statement was
voluntary." Therefore, that statement was both voluntary and admissible.

The
federal appeal court’s ruling concerning the voluntariness of Leon’s confession
completely disposed of the case. But, as with the earlier appeal, this court
took the unnecessary step of including dicta to the effect that the use of
coercion at Leon’s arrest was "motivated by the immediate necessity of
finding the victim and saving his life," and that "[t]his was
a group of concerned officers acting in a reasonable manner to obtain
information they needed in order to protect another individual from bodily harm
or death."

Since the
appellate courts, both state and federal, went out of their way to express
their approval of coercion in a life-threatening situation, their dicta is
noteworthy because it signals their acceptance of coercion in principle
– a legitimization, as it were.

If,
without objection from a state and a federal appeals court (indeed, with their
apparent approval), the Florida police could employ a relatively benign form of
coercion to save the life of a kidnap victim, it follows that the same
rationale would support actual torture (physical and/or psychological) in a
ticking time bomb situation.

Once that
threshold is crossed—once the principle is accepted that torture legitimately can
be employed to save lives—all that remains is the application of that principle
to concrete cases. While that application could be difficult—requiring some
showing of probable cause, judicial oversight, and the like—the need to create
such important procedural safeguards does not negate the argument that, in this
country, where killers are routinely put to death for the commission of a
single murder, it is neither immoral nor illegal in principle to employ non-lethal
torture—waterboarding, for example—in the name of saving thousands of innocent
American lives. Indeed, failure to do so is immoral.

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About Me

In college (BA, NYU, 1954), I studied Russian and political science and later served in Korea with United States Army Intelligence. After law school (JD, NYU, 1959) for some 55 years I practiced constitutional and appellate law. From 1972 to 1993 I taught at Brooklyn Law School, where I am now professor emeritus. My courses included Constitutional Law, Appellate Advocacy, National Security, and First Amendment. A bibliography of my writing can be found at my blog of June 29, 2012. See also www.henrymarkholzer.com.